State v. Lipp
| Decision Date | 06 September 2012 |
| Docket Number | No. 30744-1-III,30744-1-III |
| Parties | STATE OF WASHINGTON, Respondent, v. ERIC J. LIPP, Appellant. |
| Court | Washington Court of Appeals |
Korsmo, C.J. — Eric J. Lipp appeals his conviction for possession of a controlled substance, raising numerous challenges. We affirm.
Washington State Patrol (WSP) Trooper Philip Thoma stopped Mr. Lipp's truck for speeding on October 8, 2010, at approximately 7:34 a.m. on southbound Interstate 5 in Cowlitz County. Mr. Lipp's fiancée, Morgan Thompson, was a passenger. The trooper spoke to Mr. Lipp through the passenger window. Mr. Lipp was so nervous that he had trouble getting his driver's license out of his wallet. In the trooper's experience itwas normal for people to be nervous during a traffic stop, but Mr. Lipp's extreme level of nervousness caused the trooper fear. The closest backup was approximately 10 to 15 minutes away.
Based on this concern, the trooper asked Mr. Lipp to step out and escorted him to the rear of his vehicle. A weapons frisk found nothing. The trooper then asked Mr. Lipp whether he had any weapons inside the vehicle. After being informed that there was a buck knife in the truck, the trooper decided to secure it for his own safety. He asked Ms. Thompson to exit and stand at the front. Trooper Thoma then entered the vehicle through the driver's door and retrieved the knife from the exact location where Mr. Lipp told him it was located. As he picked up the knife, Trooper Thoma observed underneath it a pen barrel that was melted on one end and had white residue inside.
Trooper Thoma also secured the pen and questioned Mr. Lipp about it without informing him of his Miranda1 rights. Mr. Lipp admitted that he used the pen barrel to snort pain pills because he wanted their effect to be faster than via oral ingestion. He also granted permission for a search of his vehicle; the search turned up nothing. A field test of the residue on the pen barrel was inconclusive. Trooper Thoma then cited Mr. Lipp for speeding and released him. The knife was returned to a place in the vehicle where any movement toward it would have been obvious to the trooper.
The WSP crime lab found cocaine residue on the pen barrel. Mr. Lipp was charged with unlawful possession of a controlled substance. At the CrR 3.5 hearing, defense counsel argued that the statements made to the trooper regarding his use of the pen were the result of custodial interrogation without the benefit of Miranda warnings. The trial court disagreed, holding that Mr. Lipp was not in custody at the time of the questioning, but rather was the subject of a Terry2 stop.
At trial, the State argued that Mr. Lipp had been in constructive possession of the pen barrel and that the barrel contained cocaine residue. Trooper Thoma testified that Mr. Lipp told him he had used the pen to snort pain medication. Although the defense did argue that the State had failed to demonstrate that Mr. Lipp constructively possessed cocaine, its main thrust was unwitting possession. To that end, Mr. Lipp testified that he was unaware of the pen's existence in his vehicle. Ms. Thompson testified that she had never seen the pen before, that Mr. Lipp often loaned his truck to others, and that he rarely, if ever cleaned it. A jury found him guilty of possession of a controlled substance.
At the sentencing hearing, Mr. Lipp requested a sentence of 24 hours in jail. The trial court sentenced him as a first-time offender to 10 days in jail and 24 months of community custody with treatment. Mr. Lipp then timely appealed, but he did notrequest a stay of the sentence.
This appeal challenges the court's decision to admit Mr. Lipp's statements to the trooper and also whether counsel was ineffective for failing to move for suppression of the pen barrel under CrR 3.6. Mr. Lipp also argues that the prosecutor engaged in misconduct and that the trial court erred by failing to stay execution of the sentence pending appeal. Each is addressed in turn.
Mr. Lipp argues that the trial court erred in not suppressing his statements because he was subject to custodial interrogation without advice of rights. Miranda warnings were created in order to protect a defendant's constitutional right against self-incrimination. State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004). They must be administered anytime a suspect is subject to custodial interrogation by a state agent. Id. Absent Miranda warnings, any statements made while in custody are presumed involuntary. Id.
Neither party disputes that Trooper Thoma was a state agent or that there was an "interrogation." Consequently, the only remaining issue is whether Mr. Lipp was in custody for Miranda purposes at the time he was questioned.
The test to determine custody is an objective one—where any reasonable person would believe that his or her freedom was curtailed to the degree normally associated with formal arrest. Heritage, 152 Wn.2d at 218; Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). In Berkemer, the court concluded that routine roadside seizure and questioning did not amount to custodial interrogation. 468 U.S. at 440.
The trial court correctly determined that Mr. Lipp was not subject to custodial arrest at the time he was questioned roadside about the pen barrel.4 A reasonable person would not believe he was under arrest at the time. The trooper did not draw his weapon, use his handcuffs, inform Mr. Lipp that he was under arrest, become physical with him in any way, or otherwise display authority such as placing Mr. Lipp in the police cruiser.5 There also was nothing deceptive about the questioning which involved the evidence the trooper had just seized. The facts of this case show that Mr. Lipp, though the subject of a Terry stop, was not in custody at the time he made the statements about the pen to Trooper Thoma.6
The trial court properly admitted the statements.
Mr. Lipp argues strenuously that the trial court erred in admitting the pen barrel into evidence and, alternatively, that counsel was ineffective for failing to seek suppression of the pen barrel. The first argument fails because there was no challenge to the evidence presented to the trial court. The claim of ineffective assistance fails on these facts.
As a general rule, Washington appellate courts will not consider an argument that was not first presented at the trial court. RAP 2.5(a). One exception to that rule is a"manifest error affecting a constitutional right." RAP 2.5(a)(3). However, an alleged error is not manifest if there are insufficient facts in the record to evaluate the contention. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
To satisfy the Sixth Amendment guarantee of the right to counsel, an attorney must perform to the standards of the profession; failure to live up to those standards will require a new trial when the client has been prejudiced by counsel's failure. Id. at 334-35. Ineffective assistance of counsel claims are adjudged under the standards of Strickland v. Washington, 466 U.S. 668, 689-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). That test is whether or not (1) counsel's performance failed to meet a standard of reasonableness, and (2) actual prejudice resulted from counsel's failures. Id. at 690-92. In evaluating ineffectiveness claims, courts must be highly deferential to counsel's decisions. A strategic or tactical decision is not a basis for finding error. Id. at 689-91.
There was no motion to suppress filed in this case. Typically, that means that the matter cannot be heard on appeal. State v. Baxter, 68 Wn.2d 416, 422-24, 413 P.2d 638 (1966) (). Mr. Lipp's failure to challenge the seizure of the pen barrel has waived that issue.
Recognizing such, Mr. Lipp argues that his counsel was ineffective for failing to move to suppress. When pursuing an ineffective assistance argument on the basis of afailure to seek suppression, the defendant must establish that a motion to suppress likely would have been granted. McFarland, 127 Wn.2d at 333-34. That standard often cannot be met because the record lacks a factual basis for determining the merits of the claim. Id. at 337-38. This case is not quite in that circumstance. Because of the CrR 3.5 hearing, there is a fairly clear record relating to how the pen barrel was discovered and the rationale for seizing it. In view of that record, there is no reason to believe the evidence would have been suppressed if a motion to suppress had been filed.
"No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Wash. Const. art. I, § 7. The term "private affairs" includes automobiles and their contents. State v. Gibbons, 118 Wash. 171, 203 P. 390 (1922). "Authority of law" generally means a valid warrant; a warrantless search is presumed per se unreasonable. State v. Patton, 167 Wn.2d 379, 385-86, 219 P.3d 651 (2009). The remedy for violation of article I, section 7 is suppression of the illegally obtained evidence. State v. Larson, 93 Wn.2d 638, 645-46, 611 P.2d 771 (1980). However, there are a few "'jealously and carefully drawn'" exceptions to the warrant requirement. State v. Kinzy, 141 Wn.2d 373, 384, 5 P.3d 668 (2000) (quoting State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980)). The State bears the burden of proving their applicability. Id. One recognized exception, discussed infra, is the "plain view doctrine."State v. Reep, 161 Wn.2d 808, 816, 167 P.3d 1156 (2007).
Even when a recognized exception exists, no search can be reasonable if the initial detention is unlawful. State v. Kennedy, 107 Wn.2d 1, 9, 726 P.2d 445 (1986). Thus, the officer's right to seize the evidence turns upon the legality of the intrusion that enabled the officer to seize the property in question. Id. Here, Mr. Lipp does not dispute that the initial...
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